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Exhibit
10.1
SEPARATION
AGREEMENT AND GENERAL RELEASE
This Separation Agreement and
General Release (referred to as "Agreement") entered into this ____
day of ____________, 2007, by and between Joseph E. Lynch (referred
to as "Mr. Lynch") and Energizer Holdings, Inc. (referred to as
"ENERGIZER" and as defined at Paragraph 11):
WITNESSETH:
WHEREAS, Mr. Lynch is an employee of
ENERGIZER serving in a key leadership and strategic position as
Chief Executive Officer and President, Schick-Wilkinson Sword, and
he has recently indicated his interest in retiring; and
WHEREAS, Mr. Lynch and ENERGIZER are
amicably concluding their employment relationship; and
WHEREAS, ENERGIZER desires to
receive from Mr. Lynch a general release from any employment or
other claims which may exist, as well as covenants not to engage
(either directly or indirectly) in competition with, or to solicit
any employee, client or account of, ENERGIZER, as well as a
covenant not to disclose confidential information obtained by Mr.
Lynch in the course of his employment with ENERGIZER or its
Schick-Wilkinson Sword division; and
WHEREAS, ENERGIZER and Mr. Lynch
desire to confirm the terms and conditions of Mr. Lynch’s
release and other covenants, agreements and understandings;
and
WHEREAS, ENERGIZER’s Board of
Directors has approved the terms of this Agreement;
NOW, THEREFORE, in consideration of
the foregoing and the mutual promises and considerations contained
herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Termination of Employment . Mr. Lynch and
ENERGIZER agree that at the conclusion of business on March 31,
2007 Mr. Lynch will resign from employment as President and Chief
Executive Officer, Schick-Wilkinson Sword with ENERGIZER and will
be removed from ENERGIZER’s payroll on that date. Mr. Lynch
will continue to satisfactorily perform his duties through the end
of business on March 31, 2007. Mr. Lynch’s termination will
be deemed to be a voluntary termination of employment following
attainment of age 55 for all purposes of ENERGIZER’s benefit
plans and programs.
2. Consideration . In full consideration of
Mr. Lynch’s general release of claims which may exist against
ENERGIZER, and his covenants of non-competition, non-solicitation
and nondisclosure set forth herein, ENERGIZER agrees to pay Mr.
Lynch, upon his retirement from employment, the sum of Five Hundred
Thousand Dollars ($500,000). As additional consideration, ENERGIZER
agrees to accelerate the vesting of 2,500 unvested restricted stock
equivalents awarded to Mr. Lynch in January of 2005, which are
currently scheduled to vest in 2008 and 2009, so that vesting shall
occur upon his retirement, and at that time, 2,500 shares of
ENERGIZER’s common stock shall be issued to him.
3. No Impact on Benefit Entitlements . The
promises and payment contained in Paragraph 2, above, are in
addition to any wages or other benefits to which Mr. Lynch already
is entitled, or will become entitled, in the regular course of his
employment with ENERGIZER, pursuant to, and in accordance with, the
terms of any of ENERGIZER’s benefit plans or programs,
including, but not limited to, the benefit plans and programs set
forth in paragraph 4 of this Agreement. Mr. Lynch understands and
acknowledges that, under the terms of ENERGIZER’s Annual and
Long-Term Bonus Program, upon his retirement prior to the end of
the current fiscal year, he will not be entitled to any pro-rated
portion of the annual or long-term bonus opportunity approved by
the Nominating and Executive Compensation Committee (the
"Committee") of ENERGIZER’s Board of Directors in October of
2006, or of the contingent bonus opportunity approved by the
Committee in October of 2005, payment of which is contingent upon
fiscal year 2007 results. Mr. Lynch also understands and
acknowledges that, pursuant to the terms of the Performance
Restricted Stock Equivalent Awards granted to him by the Committee
in October of 2005 and October of 2006, upon his retirement prior
to the vesting of those awards, both of those awards will be
forfeited, as will his right to compensation under his Change of
Control Employment Agreement. It is also acknowledged and agreed
that the monetary payment described in Paragraph 2 is not to be
deemed compensation for purposes of the calculation of Mr.
Lynch’s pension benefits under any qualified or non-qualified
retirement plan of ENERGIZER.
4. Mr. Lynch’s General Release . Mr.
Lynch agrees:
a. To release, settle and forever discharge ENERGIZER,
including its agents and employees, from any and all claims, causes
of action, rights, demands, debts, or damages of whatever nature,
whether or not Mr. Lynch currently knows of them, which might have
arisen from Mr. Lynch’s employment with and termination from
ENERGIZER and which may be brought by Mr. Lynch or another person
or agency on Mr. Lynch’s behalf. This includes, but is not
limited to, all claims of discrimination which Mr. Lynch may have
arising out of any violation of any local, state or federal law,
regulation or executive order, including all claims under the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act
of 1964, the Civil Rights Act of 1991, the Americans with
Disabilities Act, the Family Medical Leave Act, the Occupational
Safety and Health Act, the Fair Labor Standards Act, the
Rehabilitation Act, the Employee Retirement Income Security Act,
the Consolidated Omnibus Budget Reconciliation Act, as well as any
claim, right or cause of action under the Missouri Revised Statutes
including, but not limited to, Workers’ Compensation
Retaliation § 287.780, the Service Letter Statute §
290.140, the Missouri Human Rights Act § 213.010 et
seq ., actions at common law, in contract or tort, all claims
for last wages, seniority, reinstatement, attorneys’ fees,
costs, and actual compensatory and punitive damages;
notwithstanding the foregoing, however, the provisions of this
release shall not affect Mr. Lynch’s right to raise any
claims based on any Social Security, Workers' Compensation, or
unemployment compensation laws, or claim for benefits under any
employee pension or welfare benefit plan or program of ENERGIZER,
now or in the future, including, but not limited to, the Energizer
Holdings, Inc. Retirement Plan, the Energizer Holdings, Inc.
Supplemental Executive Retirement Plan, the Energizer Holdings,
Inc. Deferred Compensation Plan, the Energizer Holdings, Inc.
Savings Investment Plan, the Energizer Holdings, Inc. Executive
Savings Investment Plan, the Energizer Holdings, Inc. Executive
Life and Health Plans, retiree benefits under the Energizer
Holdings, Inc. Medical Plan, and any grant of options or restricted
stock equivalents pursuant to the Energizer Holdings, Inc. 2000
Incentive Stock Plan.
b. Mr. Lynch specifically agrees that he has not been treated
adversely on account of age, race, gender or other legally
protected classification or otherwise retaliated against for any
statement, report or claim made by him, if any. Mr. Lynch
acknowledges that ENERGIZER relied on the representations and
promises in this Agreement in agreeing to pay Mr. Lynch the
benefits described in this Agreement.
c. Mr. Lynch agrees to accept the monetary payment set forth
in Paragraph 2 above, in consideration for the settlement, waiver
and release and discharge of any and all claims or actions against
ENERGIZER arising under any federal, state, or local statute, law,
or regulation pertaining to employment discrimination on the basis
of sex, race, color, religion, creed, national origin, age, mental
or physical disability, marital status, veteran’s status, or
any other reason established by law, including any claim of actual
or constructive wrongful discharge, as well as for his other
covenants set forth below.
5. Mr. Lynch’s Covenants Not to Compete,
Solicit or Disclose . Mr. Lynch acknowledges that the
services which he rendered to ENERGIZER are of a special character
which have a unique value to ENERGIZER, the loss of which cannot be
adequately compensated by damages in an action of law. Mr. Lynch
agrees that by virtue of his employment, he has gained a special
and unique understanding of ENERGIZER’s business in the
formulation, processing, manufacturing, distribution, sale, and
marketing of ENERGIZER’s wet-shave products and battery and
battery related products, as well as other products formulated,
designed, processed, manufactured, distributed, sold, or marketed
by ENERGIZER during the tenure of Mr. Lynch’s employment. Mr.
Lynch at all times recognizes and respects the advantageous
business relationship which exists between ENERGIZER and its
employees and its present and potential customers, clients and
suppliers who have been made aware of the products and services of
ENERGIZER. Mr. Lynch makes the covenants contained in this
Agreement in view of: the unique value of the services of Mr. Lynch
for which ENERGIZER has employed Mr. Lynch; the Confidential
Information obtained by or disclosed to Mr. Lynch as an employee of
ENERGIZER; and ENERGIZER’s agreement to provide Mr. Lynch
with consideration as provided in this Agreement.
Specifically:
a. Mr. Lynch agrees that for a period of three (3) years
after termination of Mr. Lynch’s employment -- i.e.,
from April 1, 2007 through April 1, 2010 -- ("the Non-Compete
Period"), Mr. Lynch will not compete against ENERGIZER in ENERGIZER
Business.
(i) For purposes of
this Agreement, "ENERGIZER Business" shall mean any of the
following business activities: any aspects of formulating, design,
manufacturing, marketing, distributing, consulting with regard to,
and/or operating a facility for the manufacturing, processing,
marketing, or distribution of, wet-shave products, including
razors, blades, shaving systems, shaving cream and other
accessories, batteries, lighting products, rechargeable batteries,
and related battery and lighting products. "ENERGIZER Business"
includes products and/or methods that presently are used, were
used, or are under development or consideration, whether or not
co
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